JAMES NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant convicted of second degree murder challenged the trial court's order extending speedy trial time while the State's petition for certiorari was pending before the Florida Supreme Court. The Fourth District Court of Appeal affirmed the trial court's extension, holding that trial courts have jurisdiction to extend speedy trial time as an exceptional circumstance pending Supreme Court review of certiorari petitions.
The trial court properly extended speedy trial time. Trial courts have jurisdiction to extend speedy trial time when a petition for certiorari is pending before the Supreme Court, as this constitutes an appropriate exceptional circumstance under Florida Rule of Criminal Procedure 3.191(d)(2) and 3.191(f).
[1] A trial court has jurisdiction to consider an extension of speedy trial time pending resolution of certiorari or a petition for review to the Supreme Court.
[2] A petition for certiorari to the Florida Supreme Court constitutes an exceptional circumstance for the purpose of extending speedy trial time under Florida Rule of Crimin…
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Join FLexlaw to unlock all legal intelligence“the trial court has jurisdiction to consider an extension of time pending resolution of certiorari or a petition for review to the Supreme Court”
States the court's holding that trial courts may extend speedy trial time during pendency of certiorari review
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Join FLexlaw to unlock all legal intelligenceNelson was charged with and convicted of second degree murder in 1977. On appeal, the Fourth District reversed and remanded for a new trial due to an …
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BERANEK, Judge.
Defendant/appellant seeks reversal of the trial court’s order denying his motion for discharge which was based on speedy trial grounds. In 1977, defendant was charged and found guilty of second degree murder.
On appeal, this court reversed and remanded for a new trial because the trial court had failed to give an appropriate jury instruction. Nelson v. State, 371 So. 2d 706 (Fla. 4th DCA 1979). This court’s mandate was filed with the trial court on July 23, 1979.
On August 3, 1979, the state filed a petition for certiorari seeking review before the Florida Supreme Court and on August 8, 1979, the state filed a motion in the trial court to extend speedy trial time pursuant to Florida Rule of Criminal Procedure 3.191.
The trial court granted a ninety-day extension to the state in which to try the defendant subsequent to the Supreme Court’s ruling on the state’s petition for certiorari.
On February 19, 1980, the Supreme Court denied the petition for certiorari without opinion. The case was set for trial before the Circuit Court on April 22, 1980, and on that date appellant/defendant filed a motion for discharge contending that speedy trial time had run and that the trial court had improperly extended said period by its earlier order. After this motion for discharge was denied, defendant pled nolo con-tendere to the charge of manslaughter reserving his right to appeal denial of his motion for discharge.
We affirm.
The issue is whether the trial court properly granted the motion to extend speedy trial time.
Defendant relies upon the case of Ferrell v. State, 385 So. 2d 120 (Fla. 3d DCA 1980). Ferrell holds that, for the purpose of further review before the Supreme Court, speedy trial time may be extended only at the discretion of the district courts by a stay of proceedings pursuant to Florida Rule of Appellate Procedure 9.310(a) and not by the trial court pursuant to Florida Rule of Criminal Procedure 3.191(g).
We disagree with the Ferrell decision and certify the result herein to be in conflict with Ferrell.
We conclude that the trial court has jurisdiction to consider an extension of time pending resolution of certiorari or a petition for review to the Supreme Court. We believe this to be an appropriate exceptional circumstance within the meaning of Rule of Criminal Procedure 3.191(d)(2) and 3.191(f). Further, in State ex rel. Girard v. McNulty, 348 So. 2d 311 (Fla.1977), the Supreme Court held that the list of exceptional circumstances stated in the speedy trial rule was not all inclusive and that sub-section (f) should be given a broad interpretation. Based on the above, we affirm the order of the trial court.
AFFIRMED.
HERSEY, J., and WARREN, LAMAR, Associate Judge, concur.
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Citator
Cited By
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Nelson v. State, 414 So. 2d 505 (Fla. 1982)…OVERTON, Justice. The Fourth District Court of Appeal, in its decision reported at 399 So. 2d 79 (Fla. 4th DCA 1981), certified direct conflict with the decision in Ferrell v. State, 385 So. 2d 120 (Fla. 3d DCA 1980). We have jurisdiction under article V, section 3(b)(4), Florida Constitution (1980). The issue is whether a trial court, after re…
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State v. White, 436 So. 2d 926 (Fla. 2d DCA 1983)…ate seeks review in the supreme court of a district court opinion, the state should request an extension of speedy trial in the trial court or seek a stay of mandate in the district court which would achieve the same result. Compare Nelson v. State, 399 So. 2d 79 (Fla. 4th DCA 1981), with Ferrell v. State, 385 So. 2d 120 (Fla. 3d DCA 1980); see also Nelson, 414 So. 2d at 506. Because of our disposition here, we also reverse the denial of the state’s motion to extend speedy trial pending this appeal. See Sta…
Authorities Cited
- State of Fla. ex rel. Christopher N. Girard v. McNULTY, 348 So. 2d 311 (Fla. 1977)
- Nelson v. State, 371 So. 2d 706 (Fla. 4th DCA 1979)
- Monroe v. State, 385 So. 2d 120 (Fla. 3d DCA 1980)